scholarly journals SEPARATION OF POWERS BETWEEN PROSECUTOR AND THE HEAD OF THE INVESTIGATIVE BODY

2020 ◽  
Vol 24 (3) ◽  
pp. 760-779
Author(s):  
Nikita V. Babich
Keyword(s):  
Civil Rights ◽  
Legal Status ◽  
Separation Of Powers ◽  
Preliminary Investigation ◽  
Current Concept ◽  
Scientific Article ◽  
Criminal Proceedings ◽  
Individual Concepts ◽  
Systemic Problems

Problems related to the delimitation of powers between the prosecutor and the head of the investigating body, as well as ways to resolve them, are in the constant focus of attention of representatives of legal science. The concept and model of differentiation of powers between such participants in criminal proceedings that was introduced in 2007, has led to serious problems, which are expressed in: - decrease in the quality of prosecutorial supervision of the preliminary investigation body in order to protect human and civil rights and freedoms at the stage of preliminary investigation; - lack of procedural independence of the investigator, priority of interdepartmental control over prosecutorial supervision; - duplication of prosecutors supervision; - large accusatory bias of the court, prosecution and investigation body and others. The negative side of such problems is that the rights and freedoms of man and citizen are violated in the first place at all stages of criminal proceedings. In this regard, the properly organized delineation of powers and functions between the prosecutor and the head of the investigating body will be standard for ensuring the rule of law; it will contribute to the fight against crime and speedy preliminary investigation in order to create the court basis to reduce the cases of incorrect court decision. The purpose of the scientific article is to analyze the provisions of the current concept and models of separation of powers between the prosecutor and the head of the investigating body, identify the main systemic problems in this area and formulate proposals for their elimination. To achieve this goal, the scientific article explores the features and problems of individual concepts and models for their implementation in organizing activities of prosecution body and preliminary investigation bodies to delimit the powers between the prosecutor and the head of the investigating body. In a scientific article, the author came to the conclusion that reforming the current concept and model of separation of powers between the prosecutor and the head of the investigating body in order to eliminate significant problems is not possible without a reform. A return to previous concepts and models is also unacceptable due to historical experience of their application. The necessity of reforming the foundations of the entire law enforcement system of criminal justice body as a whole and reviewing the legal status of the prosecutor at all stages of criminal proceedings is noted.

scholarly journals Interaction of the human-rights ombudsman in the Russian Federation with human rights law enforcement (on the example of the prosecutor’s office and the investigative committee)

2021 ◽  
Vol 118 ◽  
pp. 03023
Author(s):  
Elizaveta Petrovna Demina ◽  
Nikita Vladimirovich Babich
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Civil Rights ◽  
Legal Status ◽  
Law Enforcement Agencies ◽  
Second Stage ◽  
Quality Of Protection ◽  
Democratic State ◽  
Systemic Problems

The purpose of the study is to analyze some systemic problems in the organization and activities of the institution of the Human-Rights Ombudsman in Russia, bodies of the Prosecutor’s Office, the Investigative Committee of Russia, as well as the conditions of interaction between the Human-Rights Ombudsman and law enforcement and human rights bodies. The methodological basis of the study was the use of system-structural and dialectical methods of scientific knowledge. For a more detailed study of the problems, the methods of analysis, synthesis, and generalization were applied. For the study of normative legal regulations, special methods of document analysis in the field of knowledge under study were applied. The result of the study was the conclusion that the protection of human and civil rights and freedoms is an integral part of a developed democratic state governed by the rule of law. The authors believe that in order to improve the quality of protection of human and civil rights and freedoms it is necessary, first, to reform a large number of elements of the state system. Particular attention in all this must be paid, first and foremost, to the organization, activities, and legal status of the institution of the Human-Rights Ombudsman in Russia, as well as the bodies of the Russian Prosecutor’s Office and the Russian Investigative Committee. The second stage should be the creation of optimal conditions for interaction between the Russian Human-Rights Ombudsman and the Russian Prosecutor’s Office, the Russian Investigative Committee, and other law enforcement agencies in order to protect human and civil rights and freedoms. The novelty of the study is in the author’s approach to the consideration of these problems, as well as in the development of appropriate proposals to address them.

scholarly journals Certain Aspects of Arrest of Property in Light of the Case Law of the Appeal Chamber of the High Anti-Corruption Court

2021 ◽  
Vol 7 ◽  
pp. 14-19
Author(s):  
Denys Bykov
Keyword(s):  
Civil Rights ◽  
Legal Status ◽  
General Rule ◽  
Case Law ◽  
Appeal Chamber ◽  
Material Objects ◽  
Criminal Proceedings ◽  
Suggested Approach ◽  
Procedural Law ◽  
Procedural Code

The article explores the problems of a temporary seizure and arrest of property in the course of pre-trial investigation in light of the case law of the Appellate Chamber of the High Anti-Corruption Court and the European Court of Human Rights. It is outlined that investigators face particular problems with differentiation of material objects that are subject to seizure upon the decision of an investigator or a prosecutor and may be used for the purposes of the criminal proceedings and those which fall into the category of temporarily seized property, and the legality of their seizure is subject to control by an investigating judge. Investigating judges face the same difficulties which result in decisions on arrest imposed on biological, biometric traces, cigarette butts and other material objects that are not subject to arrest for they do not belong to the category of property. The author analyses whether documents, personal notes, and other items of the kind may be regarded as property and the criteria to categorize them as such. It is concluded that if these items are used as evidence in the criminal proceedings but have no characteristics of property, are not objects of civil rights, have no historical, artistic, scientific, literary, economic, or any other significant value in general or for a certain individual, they are not subject to judicial control and arrest and should be attached to the criminal proceedings in accordance with the rules prescribed by the Criminal Procedural Code of Ukraine.The author pays particular attention to the unfortunate wording of Part 7 of Article 236 of the Criminal Procedural Code of Ukraine, which prescribes that seized objects and documents not included in the list of items to be found in the course of a search, contained in the decision of the investigating judge onpermission to conduct a search, are considered temporarily seized property. This legal norm makes the issue of whether certain items belong to the category of property dependent upon their inclusion in thelist or absence in the list, contained in the decision of the investigating judge. Such an approach contradicts the basic principles of the property law. Therefore, the norm should be excluded from Part 7 of Article 236 of the Code. The author also suggests to change the wording of Part 7 of Article 237 of the Code and to clearly outline that documents, as a general rule, are seized and items that fall into the category of property are temporarily seized.The suggested approach will lead to harmonization of the norms of criminal procedural law with those of civil law, setting clear and understandable criteria for defining the legal status of items seized or temporarily seized in the course of examination or search and fulfilling the tasks of effective and impartial pre-trial investigation.

scholarly journals Managerial Competencies of an Investigator and the Specifics of Their Implementation in Crime Investigation

2019 ◽  
Vol 13 (6) ◽  
pp. 1017-1024
Author(s):  
Nikolai Lebedev ◽  
Yulia Lebedeva
Keyword(s):  
Public Service ◽  
Legal Status ◽  
Preliminary Investigation ◽  
Psychological Support ◽  
Criminal Proceedings ◽  
Community Members ◽  
Managerial Work ◽  
Managerial Competencies ◽  
Psychological Techniques ◽  
Special Complex

The authors describe the contents of managerial work of an investigator that includes the following elements: analysis of the investigative situation; provision of investigative leads; planning; taking investigative or other procedural actions; organization of interaction not only with the departments involved in investigative and criminalistic work, but also with other government and non-government bodies, public organizations and community members; making a decision to end preliminary investigation. They also describe the specific features of managerial work of an investigator while taking into account the variability of investigative situations and their contents, legal status of the participants of criminal proceedings, the deficit of time and the boundaries of investigative and other procedural actions, the necessity of psychological support of an investigator’s work, the presence of prosecutor's supervision that makes it possible to identify drawbacks in an investigator's work in time and quickly correct them, as well as of court control that underlines the importance of procedural actions that can only be sanctioned by a court decision. The opinions of scholars regarding the concept of «managerial competencies» and its contents are presented. The authors show that it is necessary to form and further improve the managerial competencies of an investigator on the basis of a competence approach used in public service, and to introduce a special complex of psychological techniques that show if an investigator possesses or lacks the competencies necessary for his work, in the process of psychological support of an investigator’s managerial activities. They also describe the correlations between the competencies of people that manage an investigation and the effectiveness of the work of agencies responsible for the pre-trial criminal proceedings in general. The specific features of implementing the competencies of an investigator in investigating crimes are described.

scholarly journals ORGANIZATIONAL AND LEGAL PRINCIPLES OF FUNCTIONING OF UNDERSTANDING UNITS OF THE NATIONAL POLICE OF UKRAINE

2021 ◽  
Vol 1 (2) ◽  
Author(s):  
�lexander F. Kobzar ◽  
◽  
M. Romanov ◽  
Keyword(s):  
Civil Rights ◽  
Legal Framework ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Public Authorities ◽  
Legal Principles ◽  
Criminal Offenses ◽  
Criminal Procedure Law ◽  
National Police

The article analyzes the organizational and legal basis for the implementation of the functions of the investigation units of the National Police of Ukraine. The notion of organizational and legal bases, functions and their normative-legal provision in the context of functioning of inquiry units of the National Police of Ukraine is investigated. The essence of the functions of the investigation units of the National Police of Ukraine, which is enshrined in the current legislation of Ukraine and proposed their own ways to optimize their implementation. Some positions of Ukrainian scholars are analyzed, which characterize the concept of organizational and legal principles and the essence of their functioning in the context of performing the functions assigned by law to a specific executive body � the National Police of Ukraine in general and basic, for pre-trial investigation of criminal offenses (in the text � subdivisions of inquiry). Emphasis is placed on the fact that the current regulatory and legal support in the field of functioning of inquiry units from the point of view of the organization of work of the relevant unit, partially provides them with the necessary regulatory framework. In turn, a brief description of the concept of regulatory support (standardization) in the context of the organizational foundations of the functioning of the investigation units of the National Police of Ukraine. The functions outlined in the current legislation entrusted to the investigation units of the National Police of Ukraine are studied in detail, an expanded interpretation of each function is provided and our own vision of its implementation in the context of optimizing the work of the unit is proposed, as well as the institution of human and civil rights. The conclusions formulate general and specific provisions on optimizing the work of inquiry units of the National Police of Ukraine in general, in the context of improving the quality of performance of assigned functions, and strengthening regulations on the organizational and legal framework of relevant units, in the context of optimizing their institutional capacity to respond to societal challenges. In addition, it is argued that taking measures to improve the quality of inquiry and compliance with its deadlines is a function implemented mainly by senior management of inquiry units in a way to systematically check the pre-trial investigation for each criminal offense, taking into account the workload of one investigator. Organization in accordance with the legislation of Ukraine consideration and resolution of citizens �appeals received in connection with the inquiry, which is a detailed reflection of the legislation on citizens� appeals to public authorities and acquires in this context the specific interest of applicants, as they may be participants criminal proceedings, as well as the specifics of the regime of access to the information available to the coroner because in terms of criminal procedure law, forensic tactics and techniques, not every information can be disclosed in a specific period of time. These and other theoretical positions became the foundation for further scientific developments on this topic.

scholarly journals Forms of Implementation of the Judiciary in Criminal Proceeding in the Context of the Procedural Status of the Courtas a Participant in Criminal Proceeding

2018 ◽  
Vol 5 (3) ◽  
pp. 111-119
Author(s):  
P A Lutsenko
Keyword(s):  
Legal Status ◽  
Preliminary Investigation ◽  
State Institution ◽  
Judicial System ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Structural Mechanism ◽  
Criminal Proceeding ◽  
The One ◽  
Principle Of Legality

The article examines the procedural status of the court as a participant of criminal proceedings taking into account the specifics of its legal position and the functions to be implemented. The legal status of the court in criminal proceedings by the absence of public or personal interest in the outcome of the criminal case, which not only predetermines the adversarial form of the proceedings, but also guarantees the independence of the judicial authorities in the exercise of justice. The author concludes that the concept of «court» is collective, since on the one hand it is a state institution entering the judicial system, on the other hand - the judge is the bearer of power, considering the criminal case on the merits and decisions provided by law.The judicial system has a sign of instancionnosti, due to its internal hierarchical structure. The existence of judicial bodies predetermines the movement of criminal proceedings, is a structural mechanism for the implementation of the function of internal judicial control and supervision, and also protects the rights and legitimate interests of participants in the criminal Legal proceedings and other interested persons. The powers of the court are considered from the standpoint of the functional criterion, namely: the resolution of the criminal case on the merits; monitoring of the activities of the preliminary investigation bodies; consideration of complaints on actions (inaction) and decisions of officials, conducting proceedings in a criminal case; response to violations of the rights and freedoms of citizens, the principle of legality, established circumstances, which contributed to the commission of a crime by making a private determination or decision, in the course of criminal proceedings.

scholarly journals Forms of the exercise of judicial power in criminal proceedings in the context of the procedural status of the court as a participant in criminal proceedings

2019 ◽  
Vol 13 (3) ◽  
pp. 376-385
Author(s):  
P. A. Lutsenko ◽  
Keyword(s):  
Legal Status ◽  
Preliminary Investigation ◽  
State Institution ◽  
Judicial System ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Structural Mechanism ◽  
Legitimate Interests ◽  
The One ◽  
Principle Of Legality

The article analyzes the procedural status of the court as a participant in criminal proceedings, taking into account the specifics of its legal status and its functions. The legal status of the court in criminal proceedings is determined by the lack of public or personal interest in the outcome of the criminal case, which not only determines the adversarial form of proceedings, but also guarantees the independence of the judiciary in the administration of justice. The author comes to the conclusion that the concept of “court” is collective, because, on the one hand, it is a state institution that is part of the judicial system, on the other hand, a judge is a carrier of power, considering a criminal case on the merits and making decisions stipulated by by law. The judicial system has a sign of instancedness, due to its internal hierarchical structure. The presence of judicial instances predetermines the movement of a criminal case, is a structural mechanism for the implementation of the function of internal judicial control and supervision and also protects the rights and legitimate interests of participants in criminal proceedings and other interested parties. The powers of the court are considered on the basis of a functional criterion, namely: resolution of the criminal case on the merits; control over the activities of preliminary investigation bodies; consideration of complaints about actions (inaction) and decisions of officials conducting criminal proceedings; response to the violations of the rights and freedoms of citizens, the principle of legality, established circumstances that contributed to the commission of a crime committed during the criminal proceedings by issuing a private ruling or decision.

WAYS TO INCREASE PROSECUTOR'S SUPERVISION OF OPERATOR'S ACTIVITIES

2017 ◽  
Author(s):  
Alina Yurchenko ◽  
◽  
Sofiia Mostova ◽  
Keyword(s):  
Law Enforcement ◽  
Legal Status ◽  
Controversial Issues ◽  
Criminal Proceedings ◽  
Search Activity ◽  
Law Enforcement Agencies ◽  
The Law ◽  
Compliance With The Law ◽  
Goals And Objectives

The article is devoted to certain aspects of the prosecutor's supervision over the observance of laws by the bodies carrying out operative-search activity. Issues and controversial issues of prosecutorial supervision over the activities of bodies engaged in operational and investigative activities are covered. An assessment of the effectiveness of the tasks and the adequacy of the work of the prosecutor's office. The level of compliance of the prosecutor's supervision over the observance of laws by operatives in the process of their operative-investigative activity to the Constitution and the laws of Ukraine was assessed. Proposals have been made to improve the effectiveness of prosecutorial oversight of compliance with the law by law enforcement agencies. Effective ways to increase the effectiveness of prosecutorial oversight have been sought. The views and works of scientists concerning the problems of prosecutorial supervision over operational and investigative activities are considered. The range of subjects that, within the limits of their powers, have a corresponding influence on the activity of pre-trial investigation bodies, the legal status of persons involved in the sphere of criminal proceedings, on the pre-trial investigation as a whole has been determined. Some aspects of prosecutorial supervision over the activity of bodies carrying out operative-search activity are depicted. The procedure for appointing prosecutors, as well as the goals and objectives set for them, have been studied. The grounds for conducting prosecutorial inspections, types of inspections of compliance with the requirements of the legislation on operational and investigative activities are considered. The supervisory functions performed by the prosecutor's office in other countries are compared with those performed in Ukraine. The criteria for assessing the prosecutor's supervision over compliance with the law during the implementation of operational units and the conduct of covert operation of operational and investigative activities are defined. The risks associated with the work of the prosecutor's office and operational units, which may arise at all stages of operational and investigative activities and covert work of Ukraine, have been identified. Other reasons for prosecutorial oversight are mentioned, which today prevent prosecutors from really influencing the quality of the investigation.

GUARANTEES AS AN ELEMENT OF THE LEGAL STATUS OF A JUDGE

2021 ◽  
Author(s):  
Vitaliy Hudyma ◽  
◽  
Myroslav Kovaliv ◽  
Andriy Pryveda ◽  
Khrystyna Kaydrovych ◽  
...  
Keyword(s):  
Civil Rights ◽  
Legal Status ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Principle ◽  
Independent Judiciary ◽  
The Status ◽  
Legitimate Interests ◽  
The Right ◽  
Judicial Protection

The article is devoted to the study of guarantees as an element of the legal status of a judge. The article considers the effectiveness of justice by the judiciary as an independent branch of state power, which is entrusted with the function of protecting the rights and legitimate interests of persons in the state. It is argued that the right to judicial protection can be properly realized only if there is an effective mechanism of judicial protection, which becomes real if there are guarantees for the activity of a judge. The independence and independence of the judiciary is due to the constitutional principle of separation of powers, proclaimed in the Constitution of Ukraine. However, it is in democracies that this principle acquires special significance, because we are talking about legally enshrined guarantees and effective mechanisms of «containment and balances» in the organization and activities of various branches of government. Each of the branches of government – legislative, executive and judicial, independently performs only its inherent functions, not obeying each other. Decisions are made by the judiciary due to their independence, because no additional approval by the bodies of other branches of government is required. The most important prerequisite for this is the protection of the judiciary from unlawful influence or interference from other actors. Only an independent judiciary can become the guarantor of the rule of law, the implementation of effective and accessible justice and a fair judicial decision of cases in the state. The guarantees of the judge's activity in the administration of justice are divided into three groups: guarantees of the procedural activity of the judge as the bearer of judicial power, the subject of the process; organizational and legal guarantees for the activity of a judge as a person holding a public office and is a member of the judicial community; social and legal guarantees of a judge as a citizen with a special legal status, limited in civil rights by legislation on the status of judges and occupying a separate position in society.

scholarly journals Modern Technologies as Compensatory Means of Ensuring the Rights of Vulnerable Persons in Criminal Proceedings

2021 ◽  
Vol 8 (4) ◽  
pp. 546-572
Author(s):  
S. M. Kurbatova ◽  
L. Yu. Aisner
Keyword(s):  
Legal Status ◽  
Modern Science ◽  
Law Enforcement Officers ◽  
Criminal Proceedings ◽  
Persons With Disabilities ◽  
World Community ◽  
The Social ◽  
Modern Technologies ◽  
Vulnerable Persons

This article presents theoretical and practical aspects of the use of modern technologies to promote the rights of persons with disabilities as participants in criminal proceedings. In this context, modern technologies are considered as means of compensatory nature. These technologies help persons with disabilities to become active participants in criminal procedural legal relations and independently exercise their rights and perform duties in the field of criminal proceedings. Through the use of modern technologies, persons with disabilities can level their position in relation to other participants in criminal proceedings who are active subjects of criminal procedural legal relations, and can independently exercise their rights and perform their duties. This is part of the compensatory approach that should be implemented in criminal proceedings in order to compensate persons with disabilities for the restrictions that they have due to circumstances beyond their control. The social vulnerability of individual members of society should be compensated by the state in the person of the legislator and further implemented by state bodies such as law enforcement officers. This is the essence of the compensatory approach. One can note the importance of this approach for observing human rights and building the rule of law and a welfare state in countries that view themselves as democratic. This is also important for improving the quality of international legal acts that introduce a standard for all States, members of the world community. In this connection, it is proposed to develop at the international level the direction of using the achievements of modern science and technology as means of compensatory nature, to equalize the legal status of persons with disabilities participating in criminal proceedings. As a general conclusion, a proposal is made to extend the compensatory approach not only to the field of criminal procedure, but also to the entire legal sphere, both in the norms of international law and national legislation.

scholarly journals ANALYSIS OF THE QUALITY OF THE COURT, PROSECUTOR AND LAWYERSWORK ON THE BASIS OF JUDICIAL STATISTICS: STATEMENT OF THE PROBLEM OF THE NEED TO IMPROVE THE INTERACTION OF THESE ENTITIES

2020 ◽  
pp. 204-207
Author(s):  
Tat’yana S. Kovalenko
Keyword(s):  
Criminal Justice ◽  
Civil Rights ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Joint Activities ◽  
The Status ◽  
Lower Courts ◽  
The Stability

The purpose of this article is to analyse the quality of the court, prosecutor and lawyers work through the prism of the problems of the indictment of the Russian criminal process. The study is conducted on the basis of judicial statistics of justices of the peace and courts of general jurisdiction in the first, appeal and cassation instances. The author comes to the following conclusion about modern criminal justice: 1) there is a low percentage of acquittals; 2) that maintains the stability of judicial acts of lower courts; 3) the court, prosecutor and lawyers work can control the legality of court decisions through procedural mechanisms enshrined in legislative acts. The author concludes that improving the quality of the court, prosecutor’s and lawyers’ work, as well as the level of protection of human and civil rights and freedoms lies in the plane of improving the status-role parameters of the interactions of the main participants in criminal proceedings. These interactions are determined by the circle of their joint activities legal and procedural status. Thus, we need amend existing legislation.

Sign in / Sign up

Export Citation Format

Share Document